EXPLANATORY MEMORANDUM

( Circulated by authority
of the Minister for Broadband, Communications

and
the Digital Economy, Senator the Honourable Stephen Conroy)

NEWS MEDIA (SELF-REGULATION) BILL 2013

NEWS MEDIA (SELF-REGULATION) (CONSEQUENTIAL AMENDMENTS)

BILL 2013

OUTLINE

The News Media (Self-regulation) Bill 2013 and
the News Media (Self-regulation) (Consequential Amendments) Bill
2013 together with the Public Interest Media Advocate Bill 2013,
the Broadcasting Legislation Amendment (Convergence Review and
Other Measures) Bill 2013, the Broadcasting Legislation Amendment
(News Media Diversity) Bill 2013 and the Television Licence Fees
Amendment Bill 2013 form a package of measures representing the
Australian Government’s response to two independent media
reviews conducted in 2011 and 2012
- the Convergence Review and the Independent Inquiry into the
Media and Media Regulation.

The News Media
(Self-regulation) Bill 2013 and the News Media (Self-regulation)
(Consequential Amendments) Bill 2013 respond to matters raised
in the Convergence Review and the Independent Inquiry into the
Media and Media Regulation relating to standards of media news and
commentary.

The Public Interest
Media Advocate Bill 2013 creates a new independent statutory office
which will perform functions under the News Media (Self-regulation)
Bill and the public interest test to be established in the new Part
5A of the Broadcasting Services Act 1992 .

The Broadcasting
Legislation Amendment (Convergence Review and Other Measures) Bill
2013 responds to matters raised in the Convergence Review in
relation to use of the sixth channel of television broadcasting
spectrum, Australian content and public broadcasting, and includes
certain other measures.

The Broadcasting
Legislation Amendment (News Media Diversity) Bill 2013 responds to
matters raised in the Convergence Review in relation to the
importance of diversity of media control by introducing a public
interest test for transactions involving significant news media
voices.

The Television Licence Fees Amendment Bill
2013 provides for the 50 per cent reduction in the licence fees
paid by commercial television broadcasters currently specified in
regulations to be made permanent in legislation on an ongoing
basis.

The two Bills that are the subject of this
Explanatory Memorandum are as follows:

the News Media (Self-regulation) Bill 2013
(the Self-regulation Bill); and

The purpose of the proposed Bills is to
improve the effectiveness and the responsiveness of self-regulatory
arrangements for print and online news media. The Bills will do
this by promoting compliance by significant providers of print and
online news and current affairs with standards of practice, and by
encouraging effective complaints handling arrangements to respond
to complaints regarding breaches of those standards. The Bills will
promote adherence to standards of practice in relation to matters
such as fairness, accuracy and privacy.

News Media (Self-regulation) Bill
2013

The Self-regulation Bill allows the Public
Interest Media Advocate to declare a specified body corporate to be
a ‘news media self-regulation body’. In practice, a
specified body is expected to be a self-regulatory industry body.
The Public Interest Media Advocate would be appointed under the
proposed Public Interest Media Advocate Act 2013 .

The Public Interest Media Advocate must not
make a declaration unless the body corporate meets a number of
basic eligibility criteria, including a requirement that it be a
registered company limited by guarantee; and a requirement that it
has a binding ‘news media self-regulation scheme’
applying standards to its ‘news media organisation
members’ in relation to their ‘news or current affairs
activities’.

In deciding whether to declare that a
particular body is a ‘news media self-regulation body’,
the Public Interest Media Advocate must have regard to a number of
matters including the extent to which the body corporate has
arrangements in place to deal effectively with complaints; and the
extent to which the body corporate’s standards deal with
privacy, fairness, accuracy and other matters relating to the
professional conduct of journalism.

A specified ‘news media
organisation’ will only continue to qualify for the
‘Journalism’ exemption from the privacy obligations
imposed under the Privacy Act 1988 (the Privacy Act) ,
if it is a member of a declared ‘news media self-regulation
body’ and has not had its rights as a member suspended (see
below under the heading ‘News Media (Self-regulation)
(Consequential Amendments) Bill’).

A ‘news media organisation’ is
defined by reference to its ‘news or current affairs
activities’. A number of activities are excluded, including
activities relating to material disseminated by a broadcasting or
datacasting service. A small business operator (within the meaning
of the Privacy Act) is also excluded from the definition of
‘news media organisation’.

Membership of a ‘news media
self-regulation body’ would be voluntary. However, as noted
above, a ‘news media organisation’ (as defined), would
lose the Privacy Act exemption if it failed to become a member by a
specified date.

News Media
(Self-regulation) (Consequential Amendments) Bill
2013

The
Consequential Amendments Bill amends subsection 7B(4) of the
Privacy Act so that the subsection only applies to a ‘news
media organisation’, if the organisation is a member of a
‘news media self-regulation body’ and its rights as a
member of that body have not been suspended. ‘News media
organisation’ and ‘news media self-regulation
body’ have the same meaning as in the News Media
(Self-regulation) Act 2013.

Subsection
7B(4) currently provides that an act done or a practice engaged in
by a media organisation is exempt for the purposes of paragraph
7(1)(ee), if it is done in the course of journalism and at a time
when the organisation is publicly committed to published privacy
standards. This means in effect that the activities of ‘news
media organisations’ that currently qualify for the exemption
are not subject to the Privacy Act provisions that relate to the
obtaining, keeping and disclosing of personal
information.

Under the
proposed amendments, a ‘news media organisation’ that
is not a member of a ‘news media self-regulation body’
or has had its membership suspended, would no longer qualify for
the exemption and would, therefore, be subject to the provisions of
the Privacy Act.

This means that the
Privacy Act provisions relating to complaints by individuals and
oversight by the Office of the Australian Information Commissioner,
would apply to such organisations.

FINANCIAL IMPACT
STATEMENT

The reforms in the Self-regulation Bill are
not expected to have any direct financial impact on the
Government.

The amendments in the Consequential Amendments
Bill are not expected to have any direct financial impact on the
Government.

Statement of Compatibility with
Human Rights

Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011

News Media (Self-regulation) Bill 2013

The Self-regulation Bill is compatible with the human rights and
freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011 (the Act) .

Overview of the Self-regulation Bill

The Self-regulation Bill is intended to
promote compliance by significant providers of print and online
news and current affairs with minimum standards both in the
practice of journalism, and in the effectiveness of complaints
handling arrangements. The Self-regulation Bill will operate to
encourage news media organisations to become part of a ‘news
media self-regulation body’.

The Self-regulation Bill will enable the
Public Interest Media Advocate to declare that a specified body
corporate is a news media self-regulation body. The Public
Interest Media Advocate would be appointed under the
proposed Public Interest Media Advocate Act 2013 . The Public
Interest Media Advocate must not make a declaration unless the body
meets a number of basic eligibility criteria, including a
requirement that it be a registered company limited by guarantee;
and a requirement that it has a binding ‘news media
self-regulation scheme’ applying standards to its ‘news
media organisation members’ in relation to their ‘news
or current affairs activities’.

In deciding whether to declare that a
particular body corporate is a ‘news media self-regulation
body’, the Public Interest Media Advocate must also have
regard to a number of matters including the extent to which the
body corporate has arrangements in place to deal effectively with
complaints; and the extent to which the body’s standards deal
with privacy, fairness, accuracy and other matters relating to the
professional conduct of journalism.

Under proposed amendments to the Privacy
Act 1988 (the Privacy Act) contained in the Consequential
Amendments Bill, a specified ‘news media organisation’
will only continue to qualify for the ‘journalism’
exemption from the ‘privacy’ obligations imposed under
the Privacy Act , if it is a member of a declared ‘news
media self-regulation body’.

By being a member of a declared news media
self-regulation body, a news media organisation will retain the
exemption from the National Privacy Principles and other provisions
of the Privacy Act that it currently enjoys under subsection 7B(4)
of the Privacy Act but will commit to observance of standards
framed more specifically for the print and online media through its
membership of a news media self-regulation body declared by the
Public Interest Media Advocate. This approach of linking membership
of a recognised body to certain privileges of journalism is a
simple and transparent mechanism to promote effective and
independent self-regulation of print and online news media
organisations.

Human rights implications

The Self-regulation Bill engages the following human rights:

the
prohibition on arbitrary or unlawful interferences with
privacy

the right
to freedom of expression

the right
to freedom of association, and

the right
to take part in public affairs.

Prohibition on
arbitrary or unlawful interferences with privacy

Article 17 of the International Covenant on
Civil and Political Rights (ICCPR) provides that no-one shall be
subjected to arbitrary or unlawful interference with their
privacy. This includes a right to secrecy of personal
information. Collecting, using, storing, disclosing or
publishing personal information amounts to an interference with
privacy.

The protection from arbitrary and unlawful
interference with privacy may be subject to permissible limitations
where such limitations are authorised by law and are not
arbitrary. In order for an interference with privacy not to
be arbitrary, the interference must be in accordance with the
provisions, aims and objectives of the ICCPR and reasonable in the
particular circumstances. The United Nations Human Rights
Committee has interpreted the requirement of
‘reasonableness’ to imply that any interference with
privacy must be proportional to the end sought and be necessary in
the circumstances of any given case.

Regarding the engagement of the right to
privacy in relation to the operation of a declared news media
self-regulation body, there is some possibility—though it is
likely to be remote—that a news media self-regulation body
may give too great an emphasis to freedom of expression through not
having regard to the need to protect against arbitrary and unlawful
interferences with privacy, or alternatively, would limit the
freedom of expression by emphasising the right to privacy.

This issue is addressed in the Self-regulation
Bill by requiring the Public Interest Media Advocate, in making or
revoking a declaration in relation to a news media self-regulation
body, to have regard to the need for freedom of expression and the
need to protect individual privacy. Further, in having regard
to the need to protect individual privacy, the Self-regulation Bill
requires the Public Interest Media Advocate to consult publicly and
with the Privacy Commissioner prior to making or revoking a
declaration in relation to a news media self-regulation body.

Accordingly, any
limitations placed on privacy are reasonable, necessary and
proportionate to the legitimate aim of ensuring that the
self-regulatory arrangements will operate effectively,
appropriately, and in a way that ensures media standards are
recognised and adhered to.

In addition, the
News Media Self-regulation Bill provides for a statutory review of
the operation of the proposed News Media Self-regulation Act.
A measure is included so that a report of the review must not
contain any information that is likely to enable the identification
of an individual unless the individual has consented to the
information being contained in the report. This is an
important safeguard against arbitrary interferences with privacy
under Article 17 of the ICCPR.

The Self-regulation
Bill is therefore consistent with Article 17 of the ICCPR and will
balance the rights of the news media to publish, and the rights of
individuals in relation to privacy and reputation.

Right to freedom of
association

The Self-regulation
Bill establishes a scheme that encourages specified news media
organisations to become members of a declared news media
self-regulation body. However, membership of the news media
self-regulation body remains voluntary under the scheme.
Accordingly, the Self-regulation Bill does not limit the right to
freedom of association.

Right to freedom of
expression

Article 19 of the ICCPR
provides that everyone has the right to freedom of expression,
including the freedom to seek, receive and impart information and
ideas. To the extent that specified news media organisations
will not have exemptions from the Privacy Act available to them
unless they are members of a declared news media self-regulation
body, the Self-regulation Bill will also engage Article 19 of the
ICCPR.

Under Article 19, any
limitations placed on the right to freedom of expression must be
provided by law and necessary to respect the rights or reputations
of others or protect national security, public order, or public
health and morals. The relevant provisions of the
Self-regulation Bill are consistent with Article 19 of the ICCPR as
they are provided for by law and are necessary for respecting the
rights or reputations of others.

The measures contained in the Self-regulation
Bill will promote news media organisations’ respect for the
privacy of individuals through effective and transparent
self-regulation which includes mechanisms to achieve compliance
with appropriate standards of practice and opportunities for
individuals to have concerns addressed. The Self-regulation Bill is
therefore consistent with Article 19 of the ICCPR and will balance
the rights of the news media to publish, and the rights of
individuals in relation to privacy and reputation.

Right to take part in public
affairs

Article 25 of the ICCPR provides that everyone
has the right to take part in the conduct of public affairs.
According to the United Nations Human Rights Committee, the free
communication of information and ideas about public and political
issues between citizens, candidates and elected representatives is
essential to the enjoyment of this right and this implies a free
press and other media able to comment on public issues without
censorship or restraint and to inform public opinion.

It may be arguable that the application of the
Privacy Act provisions to news media organisations that do not join
a news media self-regulation body (or to those organisations that
were suspended or expelled from a news media self-regulation body),
could potentially be construed as a ‘restraint’ on the
free press to comment on public issues and to inform public
opinion, such that the Self-regulation Bill engages Article 25 of
the ICCPR.

The Privacy Act provisions merely set
transparent, reasonable and generally applied and accepted
standards in relation to the handling of personal
information. It should also be noted that news media
organisations will have the alternative option of being subject to
the privacy standards formulated by the news media self-regulation
body, and that in declaring such a body, the Public Interest Media
Advocate must have regard to the need for freedom of expression and
the need to protect individual privacy.

There may also be a possibility, albeit
potentially remote, that a news media self-regulation body may
limit the freedom of the press to comment on public issues by
emphasising the right to privacy.

However, if a circumstance were to arise where
the right to freedom of expression (including the right to take
part in public affairs) or the right to privacy were impermissibly
limited, the Public Interest Media Advocate could revoke the news
media self-regulation body’s declaration in order to ensure
the protection and fulfilment of these rights under the ICCPR. In
revoking a declaration, the Public Interest Media Advocate must
have regard to the need for freedom of expression and the need to
protect individual privacy and also provide an opportunity for
affected news media organisations to participate in an alternate
news media self-regulatory body.

Conclusion

The Self-regulation Bill is compatible with
human rights and freedoms because it will promote the balance
between freedom of the press and the rights of individuals.

Statement of Compatibility with
Human Rights

Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011

News Media (Self-regulation) (Consequential Amendments) Bill
2013

The Consequential Amendments Bill is compatible with the human
rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (the Act) .

Overview of the
Consequential Amendments Bill

The Consequential Amendments Bill is intended
to promote compliance by significant providers of print and online
news and current affairs with minimum standards both in the
practice of journalism, and in the effectiveness of complaints
handling arrangements. The Consequential Amendments Bill amends the
Privacy Act 1988 (the Privacy Act), so that a specified
‘news media organisation’ (within the meaning of the
proposed News Media (Self-regulation) Act 2013 ) will only
continue to qualify for the ‘journalism’ exemption from
the ‘privacy’ obligations imposed under the Privacy
Act , if it is a member of a declared ‘news media
self-regulation body’ (within the meaning of the proposed
Self-regulation Act).

The proposed Self-regulation Act will enable
the Public Interest Media Advocate to declare that a specified body
corporate is a news media self-regulation body. The Public
Interest Media Advocate would be appointed under the proposed
Public Interest Media Advocate Act 2013 . The Public
Interest Media Advocate must not make a declaration unless the body
meets a number of basic eligibility criteria, including a
requirement that it be a registered company limited by guarantee;
and a requirement that it has a binding ‘news media
self-regulation scheme’ applying standards to its ‘news
media organisation members’ in relation to their ‘news
or current affairs activities’.

In deciding whether to declare that a
particular body corporate is a ‘news media self-regulation
body’, the Public Interest Media Advocate must also have
regard to a number of matters including the extent to which the
body corporate has arrangements in place to deal effectively with
complaints; and the extent to which the body’s standards deal
with privacy, fairness, accuracy and other matters relating to the
professional conduct of journalism.

By being a member of a declared news media
self-regulation body, a news media organisation will retain the
exemption from the National Privacy Principles and other provisions
of the Privacy Act that it currently enjoys under subsection 7B(4)
of the Privacy Act but will commit to observance of standards
framed more specifically for the print and online media through its
membership of a news media self-regulation body declared by the
Public Interest Media Advocate. This approach of linking membership
of a recognised body to certain privileges of journalism is a
simple and transparent mechanism to promote effective and
independent self-regulation of print and online news media
organisations.

Human rights implications

The Consequential Amendments Bill engages the following human
rights:

the
prohibition on arbitrary or unlawful interferences with
privacy

the right
to freedom of expression

the right
to freedom of association, and

the right
to take part in public affairs.

Prohibition on
arbitrary or unlawful interferences with privacy

Article 17 of the International Covenant on
Civil and Political Rights (ICCPR) provides that no-one shall be
subjected to arbitrary or unlawful interference with their
privacy. This includes a right to secrecy of personal
information. Collecting, using, storing, disclosing or
publishing personal information amounts to an interference with
privacy.

The protection from arbitrary and unlawful
interference with privacy may be subject to permissible limitations
where such limitations are authorised by law and are not
arbitrary. In order for an interference with privacy not to
be arbitrary, the interference must be in accordance with the
provisions, aims and objectives of the ICCPR and reasonable in the
particular circumstances. The United Nations Human Rights
Committee has interpreted the requirement of
‘reasonableness’ to imply that any interference with
privacy must be proportional to the end sought and be necessary in
the circumstances of any given case.

Regarding the engagement of the right to
privacy in relation to making the application of the journalism
exemption contingent upon membership of a declared news media
self-regulation body, there is some possibility—though it is
likely to be remote—that a news media self-regulation body
may give too great an emphasis to freedom of expression through not
having regard to the need to protect against arbitrary and unlawful
interferences with privacy, or alternatively, would limit the
freedom of expression by emphasising the right to privacy.

This issue is addressed in the proposed
Self-regulation Act by requiring the Public Interest Media Advocate
in making or revoking a declaration in relation to a news media
self-regulation body, to have regard to the need for freedom of
expression and the need to protect individual privacy.
Further, in having regard to the need to protect individual
privacy, the proposed Self-regulation Act requires the Public
Interest Media Advocate to consult publicly and with the Privacy
Commissioner prior to making or revoking a declaration in relation
to a news media self-regulation body.

Accordingly, any
limitations placed on privacy are reasonable, necessary and
proportionate to the legitimate aim of ensuring that the
self-regulatory arrangements will operate effectively,
appropriately, and in a way that ensures media standards are
recognised and adhered to.

The Consequential
Amendments Bill is therefore consistent with Article 17 of the
ICCPR and will balance the rights of the news media to publish, and
the rights of individuals in relation to privacy and
reputation.

Right to freedom of
association

The Consequential
Amendments Bill, together with the proposed Self-regulation Act,
establishes a scheme that encourages specified news media
organisations to become members of a declared news media
self-regulation body. However, membership of the news media
self-regulation body remains voluntary under the scheme.
Accordingly, the Consequential Amendments Bill does not limit the
right to freedom of association.

Right to freedom of
expression

Article 19 of the ICCPR
provides that everyone has the right to freedom of expression,
including the freedom to seek, receive and impart information and
ideas. To the extent that specified news media organisations
will not have exemptions from the Privacy Act available to them
unless they are members of a declared news media self-regulation
body, the Consequential Amendments Bill will also engage Article 19
of the ICCPR.

Under Article 19, any
limitations placed on the right to freedom of expression must be
provided by law and necessary to respect the rights or reputations
of others or protect national security, public order, or public
health and morals. The relevant provisions of the
Consequential Amendments Bill are consistent with Article 19 of the
ICCPR as they are provided for by law and are necessary for
respecting the rights or reputations of others.

The measures contained in the Consequential
Amendments Bill together with the proposed Self-regulation Act will
promote news media organisations’ respect for the privacy of
individuals through effective and transparent self-regulation which
includes mechanisms to achieve compliance with appropriate
standards of practice and opportunities for individuals to have
concerns addressed. The Consequential Amendments Bill
is therefore consistent with Article 19 of the ICCPR and will
balance the rights of the news media to publish, and the rights of
individuals in relation to privacy and reputation.

Right to take part in public
affairs

Article 25 of the ICCPR provides that everyone
has the right to take part in the conduct of public affairs.
According to the UN Human Rights Committee, the free communication
of information and ideas about public and political issues between
citizens, candidates and elected representatives is essential to
the enjoyment of this right and this implies a free press and other
media able to comment on public issues without censorship or
restraint and to inform public opinion.

It may be arguable that the application of the
Privacy Act provisions to news media organisations that do not join
a news media self-regulation body (or to those organisations that
were suspended or expelled from a news media self-regulation body),
could potentially be construed as a ‘restraint’ on the
free press to comment on public issues and to inform public
opinion, such that the Consequential Amendments Bill engages
Article 25 of the ICCPR.

The Privacy Act provisions merely set
transparent, reasonable and generally applied and accepted
standards in relation to the handling of personal
information. It should also be noted that news media
organisations will have the alternative option of being subject to
the privacy standards formulated by the news media self-regulation
body, and that in declaring such a body, the Public Interest Media
Advocate must have regard to the need for freedom of expression and
the need to protect individual privacy.

There may also be a possibility, albeit
potentially remote, that a news media self-regulation body may
limit the freedom of the press to comment on public issues by
emphasising the right to privacy.

However, if a circumstance were to arise where
the right to freedom of expression (including the right to take
part in public affairs) or the right to privacy were impermissibly
limited, the Public Interest Media Advocate could revoke the news
media self-regulation body’s declaration in order to ensure
the protection and fulfilment of these rights under the ICCPR. In
revoking a declaration, the Public Interest Media Advocate must
have regard to the need for freedom of expression and the need to
protect individual privacy and also provide an opportunity for
affected news media organisations to participate in an alternate
news media self-regulatory body.

Conclusion

The Consequential Amendments Bill is
compatible with human rights and freedoms because it will promote
the balance between freedom of the press and the rights of
individuals.

NEWS MEDIA (SELF-REGULATION)
BILL 2013

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1
- Short title

Clause 1 is a formal provision specifying the
short title for the Act. When enacted, the Self-regulation Bill is
to be cited as the News Media (Self-regulation) Act
2013.

Clause 2
- Commencement

Clause 2 sets out when the provisions of the
Act commence. The provisions specified in column 1 of the table
will commence, or will be taken to have commenced, on the day
specified in accordance with column 2 of the table.

The covering clauses (sections 1 and 2) and
anything not elsewhere covered by the table commence on the day the
Act receives the Royal Assent.

Clauses 3 to 16 commence on the latest of the
day after the Act receives the Royal Assent; the day the News
Media (Self-regulation) (Consequential Amendments) Act 2013
receives the Royal Assent; and the day section 3 of the proposed
Public Interest Media Advocate Act 2013 commences. However,
sections 3 to 16 do not commence at all if the proposed News
Media (Self-regulation) (Consequential Amendments) Act 2013
does not receive the Royal Assent or section 3 of the proposed
Public Interest Media Advocate Act 2013 does not
commence.

Clause 3
- Simplified outline

Clause 3 provides a simplified outline of the
Self-regulation Bill and the associated provisions of the Privacy
Act. The note to clause 3 explains that the ‘Public Interest
Media Advocate’ referred to in the simplified outline is
appointed under the Public Interest Media Advocate Act
2013 .

Clause 4
- Definitions

Clause 4 sets out definitions of key terms
used in the Self-regulation Bill.

A ‘news media organisation’ to
which the Self-regulation Bill applies, must be a corporation for
the purposes of section 51(xx) of the Constitution. However, a
small business operator, within the meaning of the Privacy Act, is
excluded from the definition. A ‘news media
organisation’ is also defined by reference to its activities.
These must be wholly or principally ‘media-related
activities’ and consist of, or include, ‘news or
current affairs activities’.

The term ‘news or current affairs
activities’ has the meaning given by clause 5.

Other terms are explained in more detail in
the notes on the clauses of the Self-regulation Bill which use the
term.

Clause 5
- News or current affairs activities

Clause 5 defines ‘news or current
affairs activities’ for the purposes of the proposed
Self-regulation Act.

Subclause 5(1) sets out the types of
activities in relation to specified material that are ‘news
or current affairs activities’. The activities, as set out in
paragraphs 5(1)(a) to (c), are:

(a) the
collection; or

(b) the preparation
for dissemination; or

(c) the
dissemination;

of specified material for the purpose of
making it available to the public.

The relevant material as specified in
paragraphs 5(1)(d) and (e) is material having the character of news
or current affairs; and material consisting of commentary or
opinion on, or analysis of, news or current affairs.

Subclause 5(2) provides exceptions to the
definition of ‘news or current affairs activities’.
Accordingly, subclause 5(1) is expressed not to apply in the
circumstances set out in paragraphs 5(2)(a) to (h).

Subclause 5(1) does not apply to material
where the relevant newspaper, periodical, newsletter or
‘online service’ (as defined in clause 4) in which it
is disseminated (or is to be disseminated), is not targeted to the
public in Australia, or is targeted to a special interest
group.

It is intended that subclause 5(1) could still
apply to material targeted at a special interest group, if the
material was published by a print or online news service targeted
to the general Australian public. It is only where the publication
or service itself is targeted at a special interest group that
subclause 5(1) would not apply to the relevant material.

Material disseminated, or to be disseminated,
in book form (that is, in a printed, electronic or audio book) is
also excluded from the application of subclause 5(1). It is
intended, for instance, that subclause 5(1) would not apply to
relevant material such as a political biography published in book
form.

Material included in a designated broadcasting
or datacasting service is also excluded from the application of
subclause 5(1). A designated broadcasting or datacasting service is
defined in clause 4 to mean a licensed or retransmitted
broadcasting or datacasting service within the meaning of Schedule
7 to the Broadcasting Services Act 1992 (the BSA) ; or
a national broadcasting service within the meaning of the
BSA . It is intended, for example, that material included in
news bulletins or current affairs programs disseminated via a
licensed broadcast service would be exempt from the definition of
‘news or current affairs activities’.

It is also intended to exempt material that is
disseminated, or is to be disseminated, by means of a newspaper,
periodical, newsletter or online service that is associated with a
designated broadcasting or datacasting service. For instance
relevant material included on a licensed broadcaster’s
website associated with its broadcasting service, would be
excluded.

Anything done by the provider of a ‘news
or current affairs aggregation service’ for the purposes of
the provision of such a service will also be excluded from the
definition of ‘news or current affairs activities’.
Clause 4 defines ‘news or current affairs aggregation
service’ to mean an online service or any other service that
does no more than aggregate material having the character of news
or current affairs or material consisting of commentary or opinion
on, or analysis of, news or current affairs. The exemption would
not apply to a service that consisted partly of news or current
affairs material produced by the service provider and partly
aggregated material.

The Public Interest Media Advocate may also
make a legislative instrument specifying a class of material or a
class of activities to which subclause 5(1) does not apply. This is
intended as a reserve power to allow the Public Interest Media
Advocate to address any relevant unintended application of
subclause 5(1). As noted under clause 3 above, the Public Interest
Media Advocate is appointed under the proposed Public Interest
Media Advocate Act 2013 . Clause 21 of that Bill provides
that the Public Interest Media Advocate will be specifically exempt
from direction by the Minister or the Government in relation to the
exercise of the Public Interest Media Advocate’s powers.

Clause 6
- Extension to external Territories

Clause 6 extends the Act to all of the
external Territories.

Part 2 - News media self-regulation
body

Division
1 - Declaration

Division 1 of
Part 2 of the Self-regulation Bill provides for the Public Interest
Media Advocate to declare a specified body as a ‘news media
self-regulation body’ and specifies the conditions and
requirements for making such a declaration and when it takes
effect.

‘News
media self-regulation body’ is defined in clause 4 as having
the meaning given by subclause 7(1).

Clause 7
- News media self-regulation body

Subclause 7(1)
provides that the Public Interest Media Advocate may, by writing,
declare that a specified body corporate is a ‘news media
self-regulation body’ for the purposes of the proposed
Self-regulation Act. It is intended that the Public Interest Media
Advocate could declare more than one ‘news media
self-regulation body’.

Eligibility
requirements

Subclause 7(2)
sets out the basic eligibility requirements that must exist in
relation to a body corporate before the Public Interest Media
Advocate can declare it to be a news media self-regulation body.
The body corporate must be a body corporate registered under Part
2A.2 of the Corporations Act 2001 and be a company limited
by guarantee. The body corporate must also have a ‘news media
self-regulation scheme’.

‘News
media self-regulation scheme’ in relation to a body corporate
is defined in clause 4. A key feature of the scheme,
which must be in writing, is that it must be binding on ‘news
media organisation members’. A ‘news media organisation
member’ in relation to a body corporate is defined in clause
4 to mean a ‘news media organisation’ that is a member
of the body corporate (see discussion above under clause 4 in
relation to ‘news media organisations’).

The scheme must
also authorise the body corporate to formulate standards in
relation to the ‘news or current affairs activities’ of
its ‘news media organisation members’ (see discussion
above under clause 5 in relation to ‘news or current affairs
activities’). The body corporate must also be authorised to
investigate breaches of the standards (either in response to a
complaint or on its own initiative) and to take relevant remedial
action if it is satisfied in the course of an investigation that
the member has breached a standard.

Subclause 7(2)
further provides that the only circumstances in which the body
corporate can have the power to expel a ‘news media
organisation member’ or suspend the member’s rights as
a member, are circumstances that involve failure to pay a specified
fee or charge or a breach of a ‘remedial direction’
given by the body corporate under the ‘news media
self-regulation scheme’. ‘Remedial direction’ is
defined in clause 4 to include a direction to publish an apology or
a correction.

Matters to
which the PIMA must have regard

Subclause 7(3)
sets out the matters to which the Public Interest Media Advocate
must have regard in deciding whether to make a declaration under
subclause 7(1) in relation to a body corporate.

The matters set
out in paragraphs 7(3)(a) to (n)
relate to a range of considerations including the effectiveness, or
likely effectiveness, of the body corporate’s ‘news
media self-regulation scheme’ and the scheme’s
standards relating to privacy, fairness, accuracy, and other
matters relating to the professional conduct of journalism as well
as the scheme’s complaints handling processes, independence
and transparency.

Other matters
relate to remedial action that the body corporate can take and the
circumstances in which a news media organisation member can be
expelled or have its rights as a member suspended. The Public
Interest Media Advocate must also have regard to matters relating
to: review arrangements for the body corporate’s ‘news
media self-regulation scheme’ (including its standards and
implementation); public awareness programs relating to the scheme;
and the body corporate’s funding and membership
arrangements.

In making a
declaration the Public Interest Media Advocate must also have
regard to the need for freedom of expression and the need to
protect individual privacy as set out in paragraphs 7(3)(o) and
(p). These provisions are intended to ensure the Public Interest
Media Advocate has regard to these important rights when
considering the declaration of a body corporate as the ‘news
media self-regulation body’. It is also intended that
these provisions will assist in ensuring Australia meets its
international obligations in relation to these rights.

Paragraphs
7(3)(q) and 7(3)(r) also provide that the Public Interest Media
Advocate must have regard to the need to minimise the number of
news media self-regulation bodies and to such other matters (if
any) as the Public Interest Media Advocate considers relevant.

Subclause 7(4)
provides that, in circumstances where a body corporate requests (in
writing before 28 April 2013) the Public Interest Media Advocate to
make a declaration under subsection 7(1), and provides such
information as is reasonably necessary for the Public Interest
Media Advocate to make a decision on the request, then the Public
Interest Media Advocate must take reasonable steps to ensure that
it makes a decision before 25 June 2013 and, if it decides to make
a declaration under subclause 7(1), to ensure that the requested
declaration takes effect before 28 June 2013.

If no declaration takes effect before 28 June
2013, the operative provisions of the proposed News Media
(Self-regulation) (Consequential Amendments) Act 2013 , will
commence on 1 July 2013. This would mean that all ‘news media
organisations’ as defined in clause 4 would lose the benefit
of the ‘journalism exemption’ in subsection 7B(4)
of the Privacy Act.

This means, in
effect, that if no declaration takes effect before 28 June 2013,
the general Privacy Act provisions relating to complaints by
individuals and oversight by the Office of the Australian
Information Commissioner, would invariably apply to ‘news
media organisations’ from 1 July 2013.

If a declaration
does take effect before 28 June 2013, the operative provisions of
the proposed News Media (Self-regulation) (Consequential
Amendments) Act 2013 , commence the day after the end of the
period of one month beginning on the first day before 28 June 2013
on which the declaration takes effect.

If the Public Interest Media Advocate’s
declaration of a ‘news media self-regulation body’
takes effect before 28 June 2013, a ‘news media
organisation’ will have one month to become a member of a
declared body before losing the ‘journalism exemption’
(subsection 7B(4) of the Privacy Act).

These provisions are intended to provide
certainty and a clear incentive for news media organisations to act
to establish and join a news media self-regulation body.

Declaration not
disallowable

Subclause 7(5)
provides that a declaration made under subclause 7(1) is a
legislative instrument, but section 42 (disallowance) of the
Legislative Instruments Act 2003 does not apply to the
declaration.

The exemption from
disallowance is intended to provide ‘news media
organisations’ with certainty about the timing requirements
for becoming members of the declared ‘news media
self-regulation body’. The exemption will also provide
certainty to the ‘news media self-regulation body’ and
individuals who will be affected by the new
arrangements.

The exemption is
also warranted in this case in light of the detailed criteria to
which the Public Interest Media Advocate must have regard before making a declaration and the
consultation requirements that must be met before a declaration is
made. The consultation requirements are set out in clause 8
(discussed below) and include mandatory public consultation and a
requirement to consult the Privacy Commissioner.

Clause 8
- Consultation and
publication

Clause 8 provides
that before making a declaration under subclause 7(1) in relation
to a body corporate, the Public Interest Media Advocate
must consult the Privacy Commissioner.
The Public Interest Media Advocate must also cause to be published on the
Department’s website a notice setting out the draft
declaration and inviting public submissions within 14 days after
the notice is published. The notice must also set out the
body corporate’s news media self-regulation scheme and the
initial views of the Public Interest Media Advocate concerning the matters to which it
must have regard under subclause 7(3). The Public
Interest Media Advocate is also required
to consider any submissions received within the 14 day
period.

Clause 9
- When declaration takes effect

Clause 9 provides
that a declaration made under subclause 7(1) takes effect at the
start of the day specified in the declaration. However, the day
specified in the declaration must be later than the day on which
the declaration is registered under the Legislative Instruments
Act 2003.

Division
2 - Revocation of declaration

Division 2 of
Part 2 of the Self-regulation Bill provides for the Public Interest
Media Advocate to revoke a declaration in relation to a body
corporate and specifies the conditions and requirements for
revoking such a declaration and when the revocation takes
effect.

Clause 10
- Revocation of declaration

Mandatory
revocation

Subclause 10(1) sets
out the circumstances in which the Public Interest Media
Advocate must revoke a declaration. In
effect, the Public Interest Media Advocate must revoke a declaration when the eligibility
requirements discussed in relation to subclause 7(2) above no
longer exist. However, subclause 10(2) provides that subclause
10(1) has effect subject to subclause 10(6).

Subclause 10(6) is
discussed in more detail below. In effect it prevents the
Public Interest Media Advocate revoking a
declaration unless the Public Interest Media Advocate
has taken reasonable steps to ensure that
a declaration in relation to another body corporate will be in
force at least 6 months before the revocation takes effect. This
will provide a lead time for members of the old body to join a news
media self-regulation body.

Discretionary
revocation

Subclause 10(3)
provides that the Public Interest Media Advocate
may revoke a declaration in relation to a
body corporate if the Public Interest Media Advocate
has reasonable grounds to believe that,
since the declaration was made, there has been a significant change
in relevant circumstances or there has been a change in relevant
community standards. This provision is intended to encourage a
declared body corporate to adapt to relevant changes so that the
declared body corporate and its ‘n ews media
self-regulation scheme’ reflect
current circumstances and community standards.

Subclause 10(4)
provides that in revoking a declaration the Public Interest
Media Advocate must have regard to the
same matters that he or she must have regard to in making a
declaration as set out in paragraphs 7(3)(a) to (n). These matters
are discussed in more detail above in relation to subclause
7(3).

Subclause 10(4)
also specifically provides that in revoking a declaration under
subclause 10(3) the Public Interest Media Advocate must also
have regard to the need for freedom of expression and the need to
protect individual privacy, given the importance of these
rights.

Paragraph
10(4)(d) provides that the Public Interest Media Advocate must have
regard to such other matters (if any) as the Public Interest Media
Advocate considers relevant.

Subclause 10(6)
prevents the Public Interest Media Advocate revoking a declaration relating to a body corporate
unless the Public Interest Media Advocate has taken reasonable steps to ensure that a
declaration in relation to another body corporate will be in force
at least 6 months before the revocation takes effect. The intention
is to provide a ‘news media organisation member’ with a
reasonable opportunity to join another declared body, in the event
that the declaration for its news media self-regulation body is
revoked. In such circumstances the Public Interest
Media Advocate will have taken reasonable
steps to ensure that another ‘news media self-regulation
body’ is declared and that the declaration is in force 6
months prior to the revocation taking effect.

Revocation not
disallowable

Subclause 10(7)
provides that a revocation made under subclause 10(1) or (3) is a
legislative instrument, but section 42 (disallowance) of the
Legislative Instruments Act 2003 does not apply to the
declaration.

The exemption from
disallowance is intended to provide a ‘news media
organisation’ with a measure of certainty about the need to
become a member of any other declared ‘news media
self-regulation body’. The exemption will also provide
certainty to the ‘news media self-regulation body’ and
individuals who will be affected by the new
arrangements.

The exemption is
also warranted in this case in light of the detailed criteria to
which the Public Interest Media Advocate must have regard before
revoking a declaration and the consultation requirements that must
be met before an instrument of revocation is made. The consultation
requirements are set out in clause 11 (discussed below) and include
mandatory public consultation and a requirement to consult the
Privacy Commissioner.

Clause 11
- Consultation

Clause 11 provides
that before revoking a declaration under subclause 10(3)
(Discretionary revocation), the Public Interest Media
Advocate must consult the Privacy
Commissioner. The Public Interest Media Advocate must also cause to be published on the
Department’s website a notice setting out the draft
instrument of revocation and inviting public submissions within
28 days after the notice is published. The Public
Interest Media Advocate is also required
to consider any submissions so received. As noted in the discussion
in relation to subclause 10(6) above, these mandatory
extensive consultation requirements warrant the exemption from the
disallowance provision of the Legislative Instruments Act
2003.

Clause 12
- When revocation takes effect

Clause 12 provides
that a revocation made under subclause 10(1) or (3) takes effect at
the start of the day specified in the declaration. However the day
specified in the instrument of revocation must be later than the
day on which the declaration is registered under the Legislative
Instruments Act 2003.

Part 3
- Miscellaneous

Clause 13 - Online service
provider

Subclause 13(1) provides that, for the
purposes of the Self-regulation Bill, a person does not provide an
online service merely because the person supplies a carriage
service that enables content to be delivered or accessed.

Subclause 13(2) provides that, for the
purposes of the Self-regulation Bill, a person does not provide an
online service merely because the person provides a billing
service, or a fee collection service, in relation to an online
service.

These rules reflect corresponding provisions
in clause 5 of Schedule 7 to the BSA and are included to maintain
consistency.

Clause 14 - Implied freedom of
political communication

Clause 14 provides that the proposed
Self-regulation Act does not apply to the extent, if any, that it
would infringe any constitutional doctrine of implied freedom of
political communication.

Clause 15 - Review of this
Act

Subclause 15(1) provides that before the end
of the 3-year period beginning on the first day on which a
declaration under subclause 7(1) takes effect, the Minister must
cause a review to be commenced of the operation of the proposed
Self-regulation Act. The duration of the review is not specified,
as it will depend on the range and complexity of issues that emerge
during the first three years of the Act’s operation.

Subclause 15(2) provides that a review under
subclause (1) must provide for wide public consultation, including
consultation with the Public Interest Media Advocate and each news
media self-regulation body.

Subclause 15(3) provides that the Minister
must cause to be prepared a report of a review under subclause
15(1).

Subclause 15(4) provides that a report of a
review under subclause 15(1) must not contain any information that
is likely to enable the identification of an individual unless the
individual has consented to the information being contained in the
report.

Subclause 15(5) provides that the Minister
must cause copies of a report to be tabled in each House of the
Parliament within 15 sitting days of that House after the
completion of the preparation of the report.

Clause 16 - Regulations

Clause 16 provides that the Governor-General
may make regulations prescribing matters necessary or convenient to
be prescribed for carrying out or giving effect to the proposed
Self-regulation Act.

NEWS MEDIA (SELF-REGULATION) (CONSEQUENTIAL AMENDMENTS)

BILL 2013

NOTES ON CLAUSES

Clause 1 - Short title

Clause 1 is a formal provision specifying the
short title for the Act. When enacted, the Consequential Amendments
Bill is to be cited as the News Media (Self-regulation)
(Consequential Amendments) Act 2013 .

Clause 2 - Commencement

Clause 2 sets out when the provisions of the
Act commence. The provisions specified in column 1 of the table
will commence, or will be taken to have commenced, on the day
specified in column 2 of the table.

Sections 1 to 3, and anything not elsewhere
covered by the table, commence on the day the Act receives the
Royal Assent.

Schedule 1 commences the day after the end of
the period of one month beginning on the first day before 28 June
2013 on which a declaration under subsection 7(1) of the proposed
News Media (Self-regulation) Act 2013 takes effect.

If no declaration under subsection 7(1) of the
proposed News Media (Self-regulation) Act 2013 takes effect
before 28 June 2013, the provision(s) commence on 1 July 2013.

However the provision(s) do not commence at
all if section 3 of the News Media (Self-regulation) Act
2013 has not commenced before 28 June 2013.

Clause 3 - Schedule(s)

Clause 3 provides that each Act that is
specified in a Schedule to this Act is amended or repealed as set
out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.

Subsection
7B(4) currently provides that an act done or a practice engaged in
by a media organisation is exempt for the purposes of paragraph
7(1)(ee) of the Privacy Act if it is done in the course of
journalism and at a time when the organisation is publicly
committed to published privacy standards. In effect, this means
that the activities of ‘news media organisations’
that currently qualify for the exemption are not subject to the
Privacy Act provisions that relate to the obtaining, keeping and
disclosing of personal information.

Under the
proposed amendment a ‘news media organisation’ that is
not a member of a ‘news media self-regulation body’ or
has had its membership suspended, would no longer qualify for the
exemption and would, therefore, be subject to the provisions of the
Privacy Act that relate to the obtaining, keeping and disclosing of
personal information. Such a news media organisation could also be
subject to an approved privacy code under the Privacy Act.

Proposed subsection 7B(4A) provides that
proposed paragraph 7B(4)(c) does not apply to the extent (if any)
that it would infringe any constitutional doctrine of implied
freedom of political communication.